The issue of free speech is at the heart of a lawsuit filed last month by suspended members of the fraternity Beta Theta Pi against Auburn University. The university suspended 10 members of two White fraternities -- Beta Theta Pi and Delta Sigma Phi -- following a Halloween party where members performed mock lynchings, paraded in blackface and donned homemade Ku Klux Klan hoods. Members of Delta Sigma Phi said they are also considering legal action.

The antics were enough for Auburn officials to suspend members of the fraternities last month and enough for the national headquarters of both fraternities to quickly disband their Auburn chapters.

But regardless of how offensive the students' outlandish behavior might be, the First Amendment protects it, several legal experts told Black Issues. So while Auburn's swift discipline drew praise from African American students and administrators and others nationwide (see Black Issues, Dec. 6), the university might find itself on the legal hot seat for disciplining the students, legal scholars say.

"This is the hardest thing for people to understand: The First Amendment protects free speech, regardless of how offensive it is," says Robert Sedler, a constitutional law professor at Wayne State University and an expert on First Amendment law. "And that means tolerating an awful lot of hurtful speech. It's similar to flag burning. No matter how much that turned patriotic people off, it was protected by the Constitution."

Meanwhile, a judge has ordered Auburn to reinstate all 10 suspended students, but did not bar the university from taking other disciplinary action, including expulsion. Janet McCoy, a spokeswoman for the university, told Black Issues she did not know whether the university planned to take other action against the students.

Auburn's president, William Walker, did not return calls seeking comment. Nor did Lee Armstrong, an attorney for Auburn. The lawsuit, which seeks $300 million in compensatory and punitive damages ($1 million for each member of the fraternity), names Walker as a defendant, along with the Auburn University Board of Trustees; Auburn's director of student affairs, Wes Williams; and the national office of Beta Theta Pi fraternity, which shut down the Auburn chapter.

Romaine Scott, an attorney based in Birmingham, Ala., who is representing the plaintiffs, also did not immediately return calls.

The lawsuit claims that Auburn officials and the national office of the fraternity violated the students' constitutional and civil rights, including freedom of speech, freedom of association and privacy guaranteed by the First and 14th amendments.

The fraternity also claims the university's standards on student conduct, particularly those dealing with racial issues, cannot be enforced because they are unconstitutionally vague. …

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